The Supreme Court will hear oral argument today in Elonis v. United States, testing the scope of the First Amendment when words that certainly sound like true threats are made on Facebook by a man after his wife left him.  It’s an ugly fact pattern, offering such social media gems as:

Exhibit 12 in the government’s case against Anthony Elonis is a screenshot of a Facebook post he wrote in October 2010, five months after his wife, Tara, left him. His name appears in the site’s familiar blue, followed by words that made Tara fear for her life: ‘’If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.’’

If this strikes you as too prospective, try this one instead:

‘’There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts’’

Pretty straight forward, as threats go. Yet, Elonis’ argument is that he would never harm Tara, his wife, but was venting his anger and emotion, and these “threats” were “therapeutic” for him.  What of his First Amendment right to express his anger, even if unseemly?  Emily Bazelon explains Tara’s perspective:

He had copied the Whitest Kids U’ Know, along with the rapper Eminem, to try his hand at art and parody. Tara said she knew her husband had borrowed some of his words, but they still scared her. ‘’I felt like I was being stalked,” she said in court. ‘’I felt extremely afraid for mine and my children’s and my family’s lives.’’

Under the “true threats” exception to the First Amendment, the Supreme Court recognized that threats of violence toward another person are not protected speech.

For decades, the court has essentially said that ‘’true threats’’ are an exception to the rule against criminalizing speech. These threats do not have to be carried out — or even be intended to be carried out — to be considered harmful. Bans against threats may be enacted, Justice Sandra Day O’Connor wrote in 2003, to protect people ‘’from the fear of violence’’ and ‘’from the disruption that fear engenders.’’

This, however, doesn’t do much to define whether an expression is a “true threat” or venting.  The answer turns on whose perspective defines the significance words.

The central question for the Supreme Court will be whose point of view — the speaker’s, or the listener’s — matters. The jury was instructed to convict Anthony Elonis if it was reasonable for him to see that Tara would interpret his posts as a serious expression of intent to harm her. The court could uphold the standard, or it could require that jurors be asked to convict only if they believe the speaker truly intended to threaten harm. In essence, the court will have to decide what matters more: one person’s freedom to express violent rage, or another person’s freedom to live without the burden of fear?

By framing the question as a clash of “freedoms,” Bazelon does her argument little good.  Freedom of speech is express in the Constitution, whereas “freedom to live without the burden of fear” is neither an express right, nor any right at all. Sure, it sounds warm and fuzzy, and would make a great folk song refrain, but it’s just not so. We all live with “the burden of fear.” Fear of the police. Fear of failure. Fear of rejection. Fear. It’s part of life.

‘’We usually think of freedom of speech as enhancing liberty, but this is speech that takes away someone else’s liberty,’’ said Danielle Citron, a law professor at the University of Maryland.

Except this has nothing to do with the issue before the Court, and is just Bazelon’s gratuitous insertion of gender politics into the case. The foremost purpose of the First Amendment is to protect disfavored speech, the liberty of the speaker, which by definition is protected at the expense of someone whose liberty to silence speech they don’t like.

But this isn’t just “the burden of fear.” This is fear of speech expressing acts of specific violence directed toward a specific person by another specific person.  Critically, it’s a specific person they know.

If it’s possible to shrug off anonymous online threats, it’s much harder to do that when a threat is made by someone you know intimately. In these cases, dread felt by targets is rational and may leave them struggling to sleep, eat or work. To escape, they may uproot themselves and their families. This kind of disruption fits with the Supreme Court’s rationale for allowing laws that ban threats.

Contrary to the emotional plea, the case presents a foundational basis for invocation of the  “true threats” exception.  The question that remains is whether the speaker must be proven to possess the intent to cause harm that removes his speech from First Amendment protection:

To prevent people from being locked up over a misunderstanding, the A.C.L.U., like Elonis, wants a higher bar for conviction. ‘’The age-old principle is that we don’t criminalize speech without that clear intent,’’ said Lee Rowland, an A.C.L.U. staff attorney.

In response, Bazelon suggests that fears of chilling protected speech may be overblown:

The truth is that even when intent to do harm seems obvious, online threats are rarely prosecuted. Citron looked at the federal law that is the basis for the Elonis case and found that it has been enforced fewer than 50 times, online and off, over the past eight years.

At Volokh Conspiracy, Orin Kerr challenges the accuracy of Citron’s number.

I don’t think that’s right. Elonis was prosecuted under the interstate threat statute, 18 U.S.C. § 875(c). The Bureau of Justice Statistics keeps stats on how often different federal crimes were charged. Running the numbers for § 875(c) for the last eight years the numbers are available — 2005 to 2012 — shows 242 cases closed involving § 875(c). Some of those are non-Internet cases, like old-fashioned telephone threats, but my sense is that more and more are online threats. And that’s just § 875(c): Other Internet threats are charged under different federal statutes, such as 47 U.S.C. § 223(a)(1)(E). Plus, many other threat cases are state cases prosecuted under state threat laws.

Regardless, Bazelon’s point is a weak one. The number of prosecutions overall has nothing to do with the right of each and every individual to constitutional protections.  Neither Bazelon nor Citron gets to forfeit Elonis’ free speech rights to the cause of a life without the burden of fear.

That said, the facts of the case are both ugly enough and sufficiently outside the norm of speech as to make it a dubious proxy for a test of free speech on the internet.  It does present a grave risk that the rhetoric of the case may be twisted from such blatantly violent words, offered under such peculiar circumstances, will be adopted by advocates to silence all speech that places the “burden of fear” on those too delicate to handle words that would never amount to “true threats.”

As much as its hard to have much sympathy for Elonis’ words, which are really pretty awful and inexcusable no matter how “therapeutic” he may (or may not) have found them, the maxim that “bad facts make for bad law” rings loud and clear in this case.  Hopefully, the Supreme Court won’t feed a political minefield with its own bad words that further undermine constitutional understanding with warm and fuzzy phrases that feed the angst-ridden soul.